U.S. v. Washington, 1974-2014

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“They gassed us, clubbed us, dragged us, beat us. Those were hard times,” said Puyallup elder Ramona Bennett, recalling the brutal treatment of tribal fishermen and their families by state enforcement officers during the treaty fishing rights struggle of the 1960s and ’70s.

The struggle led to the landmark 1974 ruling by federal Judge George Boldt in U.S. v. Washington. Boldt’s ruling upheld the treaty-reserved salmon harvest right of the tribes, establishing them as co-managers of the resource and affirming the tribal right to half of the harvestable salmon returning to their historic fishing sites.

Tribes gathered in early February to celebrate the 40th anniversary of the Boldt decision with a daylong symposium looking at the past, present and future of U.S. v. Washington and tribal treaty rights. “This was the same time as the peace strikes and the civil rights movement,” Bennett said. “There was a change going on and we got to be part of that change.”

The Fish War of the 1960s and ’70s was actually the second Treaty War, said Muckleshoot tribal member Gilbert King George. “Research has shown that families who fought in the second Treaty War are, in most cases, direct descendants of the warriors that fought in the first Treaty War of 1855 to ’56. We won both wars, no matter what they tell you in history.”

Muckleshoot elder Leo LaClair recalled helping to get the word out about the treaty fishing rights struggle. Seeking witnesses to the violence being shown to treaty tribal fishermen and their families, he invited Dr. Evans Roberts of the American Friends Service Committee and University of Washington Medical School, to attend a “Fish-In” protest on the Nisqually River.

“What he saw was a terrible, violent confrontation,” LaClair said. “It was a horrific scene.”
The experience sparked Roberts to draft Uncommon Controversy, the first book to detail the treaty fishing rights struggle. A companion book, Treaties on Trial, soon followed. Together, the two books provide a comprehensive look at the treaty fishing rights struggle and the Boldt decision. At the Boldt 40 celebration, Indian activist Hank Adams – who organized most of the Fish War protests – shared a story about a confrontation on the Nisqually River involving his good friend, NWIFC chairman Billy Frank Jr. Frank had been fishing off-reservation, just upriver from his home at Frank’s Landing. He was returning with his catch when he saw a few dozen state fish and game enforcement officers lining the opposite bank. When the officers launched two fast boats to intercept him, Frank gunned his skiff toward the landing and yelled to Adams onshore: “Get the gun!” Get the gun!”

Adams grabbed the rifle and headed toward the landing, but stopped when he saw the enforcement officers, and dived for cover behind an abandoned car. “I used my military training to use my rifle butt to break the fall, but when I hit the ground, the gun went off,” he said. “Then my hand slipped from the rifle and I cut it on a broken bottle.”

At the sound of the shot, officers on the two boats dived for cover and began motoring blindly down the river, right past Frank.

Billy Frank Jr. and tribal youth.

As Frank was unloading his catch, the county sheriff and a half-dozen deputies arrived at the landing with lights and sirens. Urging calm, he noticed Adams’ bleeding hand and provided first aid, then left with his deputies. “That day Billy was able to hang on to his fish and his nets, but that wasn’t usually the case,” Adams said.

The treaty rights struggle began long before the Fish Wars of the 20th Century, Frank said. “They knew what they had to do. They lived here. This is their home. They knew that’s our food that comes up the river.”

It was the testimony of elders during the U.S. v. Washington trial that helped clinch Boldt’s ruling, said professor Charles Wilkinson, an Indian law expert who teaches at the University of Colorado.
“Most spoke in their own languages. Judge Boldt, ruling on the basis of justice in its most luminous dimensions, accepted the elders’ testimony and took it into consideration. The elders’ testimony brought the whole story together,

“The truest and most profound fact about the Boldt decision is that it was conceived and accomplished by Indian people. The transcendent meaning of the Boldt decision was to uphold the treaty rights of Northwest tribes, but it was also a national case about national obligations and values. The decision was a gift to all of America.

“It was stamped with a kind of courage that few judges are ever asked to summon,” he said.

“Along with Brown versus Board of Education (a landmark civil rights case striking down segregation) and very few other cases, the Boldt decision stands as one of the highest and finest examples in the nation’s long history concerning what America and its citizens can accomplish in the name of justice for dispossessed people,” Wilkinson said.

Stuart Pierson, then a young assistant U.S. Attorney in Seattle, argued the Boldt case for the federal government. He described himself as “a privileged kid looking for excitement in trial work.”

In 1968 he was sent to Mississippi to help enforce civil rights. He was shocked at what he saw. “I watched people like me brutalize African-Americans,” he said. “I found that the law could be an effective instrument for minorities who had written rights that were not only never realized, but constantly trampled upon.

I came out (to Seattle) to prosecute the bad guys, but ended up working for the good guys,” he said.

Alan Stay was a young attorney who represented 10 tribes in the U.S. v. Washington proceedings. Even after Boldt issued his ruling in 1974 there was continued strife, he said.

“Unfortunately, the state of Washington was unable to recognize that it had lost the case,” he said. It wasn’t until Boldt’s ruling was upheld by the U.S. Supreme Court in 1979 that the state began to realize it needed to work together with tribes.

“The best thing that has happened to the salmon in the state of Washington was the Boldt decision,” said Bill Wilkerson, director of the state department of Fish and Wildlife in the early 1980s. “When we started to show up together, we actually had power. We were powerful enough to get a 96-0 vote in the Senate to ratify the U.S./Canada Pacific Salmon Treaty in 1985.” The treaty governs fisheries shared by the two countries.

Younger generations of tribal members need to pay attention to the teachings of the past, said attorney Patricia Zell, who served on the U.S. Commission on Civil Rights during a 1977 investigation of the state of Washington in the aftermath of the Boldt ruling.

“Your greatest challenge is the ongoing challenge to address the level of ignorance about Indian people. That ignorance continues today and is alive and well in Congress. Each time a new member comes in, that education has to begin anew.”

Fawn Sharp, president of the Quinault Indian Nation, remembered fishing as a child with her parents and grandparents. “I couldn’t imagine myself, my being, my spirit separated from that very sacred right. It’s who we are as Indian people,” she said.

Brian Cladoosby

“The United States sought to assimilate us, terminate us, destroy us, take away our culture, our language, take away our ability to do just basic things like hunt and fish. But that spirit lies in all of us, that spirit of strength.”Brian Cladoosby, chairman of the Swinomish Tribe, said that all tribes seek a brighter future for following generations. “A future of limitless possibilities, to live the life passed down from generation to generations, to walk the banks of the river, to get in the boats, lay out the nets and pull in that salmon like our elders have done since time immemorial, and to pass that on to our children and grandchildren.”

While tribes gathered to celebrate Boldt’s ruling, they also gathered to honor Judge Boldt himself.

“Although dad was known as a very strict judge, brooking no nonsense on the bench, he was the opposite at home. He was a wonderful, fun-loving, caring and involved father,” said his daughter, Virginia Riedinger. “He never wavered from his belief that his decision was right and just.”

That memory was shared by Dr. Richard Whitney, a University of Washington professor who served as Boldt’s technical advisor from 1974-79.

“He was a genuine hero. He was determined to implement his decision and he knew that his decision was right. When the U.S. Supreme Court affirmed his decision, I went to call on him and talk a little about it. All he said was: ‘I thought I was right, and as it turned out, I was.’”

Andrew Gobin from the Tulalip News gives some great coverage of the Boldt 40 event:

Throughout the celebration, an empty chair sat near the front. It was a symbol of all the ancestors of the tribes that fished the Puget Sound, as well as those warriors of the Boldt Decision that have passed on; Guy McMinds, Bernie Gobin, Vernon Lane, and Chet Cayou Sr., to name a few. The importance of this chair is immense. It represents the passing of the torch to the younger generation. The celebration of the Boldt Decision was to remind the younger generation about the importance of the treaty, how hard their elders fought to protect it, and how hard they need to continue to fight for the treaty, for their sovereignty, and for their culture.

But Boldt’s ruling, upheld by the U.S. Supreme Court, did more than affirm Indian fishing rights. It upheld treaties as being supreme over state law, as stated in the U.S. Constitution. It established Treaty Tribes as co-managers of the salmon fishery. And, as Muckleshoot Tribe attorney Alan Stay said, it spawned other actions designed to protect salmon – because if there is no salmon fishery, then the treaty is violated.

“It was the Boldt Decision that was the lightning strike,” said Western historian and Native American law expert at the University of Colorado Boulder, Charles Wilkinson, who is now writing a book on the decision’s history and legacy. “It wasn’t just getting a fair share of the fish, but they had the right to act as sovereigns. These tribes really did not have working governments, certainly as far as the outside world was concerned. Afterward they set up courts, environmental codes and crack scientific operations – it gave them confidence.”

When passionate leaders speak about the issues that matter most to them, their words often transcend the moment. A speech by Billy Frank Jr. at an event celebrating the 40th anniversary of the Boldt Decision on treaty fishing rights, included a quote of that nature.

Frank said, “You’re the next generation to take the fight on for your culture and your way of life. You’re an Indian, and you gotta be proud — proud of who you are.

Wednesday marks the 40th anniversary of a landmark tribal fishing rights ruling by a federal judge that pleased Native Americans and shocked and angered non-Indian fishermen around the Northwest in a polarizing decision that unleashed both celebrations and protests.

Major court opinions rarely carry the name of the judge, but the case U.S. v. Washington is commonly known as the Boldt Decision, after George Hugo Boldt (right), a federal district judge who presided over the case.

We’re starting to work our way through the videos from the Boldt 40 celebration last week. So far, we’ve posted videos of Ramona Bennett from the Puyallup Tribe of Indians and Leo LaClair and Gilbert King George from the Muckleshoot Tribe.

You can watch Bennett in the window below.

We’ll be adding additional videos throughout the week. You can watch our Vimeo page for more updates.

Eventually, we’ll be posting all of the raw footage to the Tribal Voices Archive page for use by researchers and non-profit filmmakers.

On the stage at the Boldt 40 celebration, a lone chair was placed stage left, draped in a blanket with small basket in the seat. This was the “Honor Chair”. Attendees were asked to contribute names to the basket of people who are important to them and to the treaty fishing rights effort. Those names and groups are posted below. If you would like to contribute to this list, please email troyal@nwifc.org.

Fawn Sharp, President, Quinault Indian Nation, speaks to what tribes, their leaders and their supporters need to do to work together for Treaty Rights At Risk

Sharp recalled as a little girl fishing with her family on the Quinault River, and the excitement when she saw a cork sunk, which usually meant a fish had been caught.

“I couldn’t imagine myself being separated from that very sacred right.”

She spoke to how The Creator put her and her people on this earth for a reason.

We fought the fight. It’s undeniable – there was something that bound us to the fight and what bound us was the basic principle – The Creator made us Indian people a certain way. The Creator put us in these lands. The Creator put a spirit in us.

When we signed the treaties – it was a young country in 1855. We were 100 years old in the magnitude of the entire world; it was emerging as a powerful country.”

It was this country that tried to assimilate tribes, take away the right to basic things like hunting and fishing but the spirit, with those battles before them – when it seemed like we were losing the battles, we went back to our roots and who we were as The Creator intended.

We see young people in Headstart learning our languages. We see our elders telling our stories and becoming part of writing that history. I was called to remark on the future as a tribal leader.

It seems so daunting.

There are decisions by the feds that diminish the resource and our powers. That diminish the science. The future of the seven generations. The glaciers are melting. It all seems to fall on deaf ears.

We’re trying to protect our treaties at risk, and Billy is asking, who is in charge?

With the Creator’s wisdom and guideance, when we convene meetings and ceremonies, we bring the Creator in to everything we do. I know that’s why Indian people are still here. Even though the most powerful country of the world sought to destroy us.

It’s hard to be in the trenches… but we all know the fight is worth the fight and we all know those who dedicate to the litigation and battle and the spirit of Boldt, the individuals who waved the facts and drew a sense of right and wrong and we know nothing more than what the Creator granted to us. People ask us what we want – we just want to live as the Creator intended for us.

Bob Perciasepe, Environmental Protection Agency, Deputy Administrator

Bob Perciasepe, Environmental Protection Agency, Deputy Administrator, discusses the value of the tribal relationship to the EPA and working together.

I can’t tell you how profound it is to hear about the struggles, which I’ve heard about, but then to hear about them in person today about the Boldt decision.

But if Boldt reminds us where we’ve come from, then there are new urgencies – treaty rights at risk.

How can we avoid this risk – what actions can we take to avoid going down the wrong path? Today our struggle to fulfill our responsibilities and obligations to tribes in the region is evermost in our mind. Threats to tribal fishing are real and it’s much more about the environmental destruction and habitat and it’s the decline of the salmon from all these forces that are play.

The Boldt tribes have that co-management responsibility – but the tribes have forcefully and careful relayed to all of us that co-management authority isn’t enough.

But I have to tell you – for the fed government, there are many agencies involved with this and it would be unfair if I didn’t tell you there are conflicts within. Different agncies have different legal authorities. These are things you shouldn’t worry about … but we’ve gotten a lot of good advice on how to be better partners with our federal trustees.

We’re working very hard …. we’re working on a process to help solve the policies if they’re in the way of making progress and this means consulting with tribes.

The Elwha dams – it’s been several presidents that have gone by that have been trying to work on this and some have been more ambitious than others to make it a reality. It is a reality and it would not have happened if not for the tribes important careful pushing of the governor. And Norm Dicks. And the colorful voices in DC.

The coho, chinook and pinks are all doing something they haven’t done in a long time – not banging their heads up against a dam. (The dams coming down) seems like a simple feat but it’s a symbol of what we can do when we come together.

Right here in Washington we’re working with the Lummi and Nooksack to evaluate climate impact and how we can protect salmon, for example, in the Nooksack watershed where water temps affect quality of habitat. We know it’s high priority for the tribes and for us too.

This spring, we’re going to propose EPA regulations to reduce greenhouse gas emissions and we need your help to support that.

We need to confront all these problems and the treaty rights at risk. But we can’t ignore the air and water and climate issues. They all come back together and they are all connected.

Tomorrow morning, a letter will find its way from DC to the chairman of the Northwest Indian Fisheries Commission … to BIlly … and it will talk how the federal government wants to join in this celebration. And speak of our future together. Our future is what counts and government-to-government is what counts and that letter will be signed by Barak Obama.

The lesson is that we must go forward and carry on the Boldt Decision.

Alan Stay, tribal attorney who represented several tribes in U.S. v. Washington:

“After U.S. v. Washington, every tribal person here had a right to expect a breather. Had a right to expect that once the law was articulated, that it would be followed. That their days of struggle might be coming to an end, and they could go on the water and enjoy the right that was secured to them in 1854 and 1855.”

The state was unable to recognize that they lost the case.

The tribes have “tenacity. You don’t win once. You don’t win twice. You just keep going until finally you beat the opposition down.”

When the state said it was unable to manage fisheries following the Boldt decision, “Judge Boldt says, ‘I’m going to take over part of the management. The part that affects tribes, even though you can’t or say you can’t, I will.’ ”

It was “a monumental change, a courageous decision by Judge Boldt. It hardly ever happens that the court will … not only enjoin the state, but also take an active role in making sure rules are followed.”

Two issues weren’t legally defined by Judge Boldt:

Habitat:

“When this case was filed, the tribes put into their complaint that habitat must be protected. What good is the right to take fish if there are no fish? They knew that was a hollow, false promise.”

“That’s a long time to wait for a decision, but it was a decision worth waiting for. When the state acts to build a culvert that harms fish, that’s wrong. That’s against the treaty. They can’t do it.”

Shellfish:

“In the 1994 Rafeedie decision, the court held that indeed tribes have a right to take shellfish they may never have taken at treaty times: subtidal shellfish. A fish was a fish. All the shellfish in their usual and accustomed areas. The treaty right went to all of that. A tremendously broad and powerful decision.”

Bill Wilkerson, former director of the Washington Department of Fish and Wildlife, helped foster co-management by the treaty tribes and the state.

When he was appointed deputy director of WDFW, Wilkerson said, “I want to put an end to this crap. I’m not interested in being deputy director if you’re not interested in putting an end to this embarrassing war.”

By 1983, when I became director, I’d pretty much had enough. We were still fighting daily in the fisheries advisory board, something Dr. Whitney oversaw for many years. The court was still basically managing the fisheries. I think Judge Boldt was one of the great judges in the history of the United States, but I don’t know that he and Dr. Whitney alone could manage as substantial a fishery as we had.

I was supposed to oversee the management. Billy thought at that time that he should be managing fisheries. Billy started it, by the way. Billy was starting to talk about (the fact) that the treaty right is the way, but what good is it doing when we’re fighting over a smaller and smaller resource?

I thought that was our job to protect the salmon. I thought our statute was crystal clear.

In 1983, I had come to a political conclusion myself, and I persuaded Gov. Spellman: We needed to end the fish war. The Boldt decision had the potential to be the most important and best thing that ever happened to the salmon resource in the state’s history. In the last 40 years, I think I was right: The best thing that has happened to the salmon in the state of Washington was the Boldt decision.

That was not a popular view. It probably still isn’t, but that doesn’t matter because it’s the law of the land. It has nothing to do with allocation, it has to do with raising the importance of the resource in the public’s mind.

We managed our way through a season together in 1984, at the same time forming the U.S.-Canada treaty together. It was just amazing how much attention we were able to garner for the fish at that time. Billy and I were starting to make speeches to larger crowds. People were sick of the fish wars. People were concerned about the fish.

Why do I say the Boldt decision was good? Because the Boldt decision triggered all of those things. It forced us to finally get together. Getting together doesn’t mean we were singing kumbaya. We didn’t agree with each other on everything, but we worked together. Billy and I started going to to D.C. together and telling the delegation we needed money,

Our society doesn’t have a sense of history like the tribes have. One of the things I respect most about what’s going on here today is the fact that multiple generations are meeting to discuss how we all got here.

If you ever feel like the Boldt decision can be taken for granted, don’t go there. The Boldt decision is the key to protecting the salmon, the key. You’re the political leverage. You have the legal leverage, and boy did I want to get on that train. And it was the best choice and I and my two bosses, Gov. Spellman and Gov. Gardner, ever made. We decided to be with you in your commitment to protecting the salmon and shellfish resources in the state of Washington. That proved to be better politics than fighting the tribes and fighting their treaty rights, I’m proud to say to the younger generation that your job is to continue the cooperation we built in in the 1980s because it works and it gives you power and it gives the state power that it would never have had if it weren’t for the gentlemen behind us, Judge Boldt.

Stuart Pierson served as an Assistant US Attorney during the U.S. v. Washington litigation from 1971 to 1975.

Early in his career in civil rights law, he “found that law could be an effective instrument for minorities who had their rights being constantly trampled.”

“I came out here to prosecute the bad guys and ended up working with the good guys.”

The Fish Wars were an increasingly violent conflict and Pierson was the only one in the U.S. Attorney’s office who had experience getting an injunction against the state law enforcement.

The tribes had a clear supreme right: The treaty.

The tribes had a faithful judge.

The tribes had the tools.

“Collectively with the other lawyers for the tribes, we put together a remarkable record….We had a lot of discovery, a lot of interrogatories, a lot of documents. Two things we had were biology and anthropology.”

The Fish and Wildlife Service’s dedicated biologist was Jim Heckman.

The anthropologist was Barbara Lane. “What we told her we needed was to work with the tribes, go back and develop as much as the true history and anthropology.

“When you interview an expert, you have a fear that they’re going to give you the wrong answer. Barbara never gave me an answer, she gave me a full understanding of each tribe, a history of cannery period.”

Her work was crucial to all of us and gave us a sense that we could provide Judge Boldt with the fundamental understanding that none of the people outside the court knew until this decision.

John Echohawk, Pawnee, is the executive director of Native American Rights Fund (NARF) and is dedicated to helping Native Americans with legal issues.

“I started in fall of 1970 in California, as part of a project of the Indian Legal Services Program. We wanted to expand our services nationwide and with a grant from the Ford Foundation, we started offering legal advice and assistance to Indian people who didn’t have legal representation. It took in nearly all our people but we had substantial rights under the treaties.

“It was a daunting task to look around the country and figure out what was the most priority … the one that jumped out at the most was what was happening in this area. There were a lot of arrests and violence and and it was national news. So it became pretty clear to us that this was one of the issues that thought we’d see if we could help with.”

NARF spent time in this area and had to think big in terms of the treaty.

“It was outstanding what Boldt did. (NARF) was very strong in asserting that very substantial right on behalf of the tribes. It has because something of a tradition for us, fighting for big issues around the country. Sovereignty issues, federal termination cases. Headlines were all across the country in terms of our people standing up for their rights through the work of NARF. We also worked with Native American leaders to help us determine which were priorities.

These leaders today continue to help address issues across the country. We’re involved in all kinds of issues with tribes across the country – tribal sovereignty, human rights, natural resources protection, as a nonprofit we’re always looking for ways to raise funds to help those who don’t have the resources to fight themselves.

Now in our 44th year, it’s great to have the tribes step up and provide resources to NARF. Like Billy was saying, these issues go and on and on.

Zell started off with a quote from President Lyndon B. Johnson: “We must affirm the rights of the first Americans to remain Indians while exercising their rights as Americans. We must affirm their right to freedom of choice and self-determination.”

She was a part of the U.S. Commission on Civil Rights that came to Washington state to examine if there was discrimination was being practiced against Indians, where she first met NW tribal leaders, including Ramona Bennett, Gilbert Kinggeorge and Billy Frank Jr.
Post-Boldt decision showed that backlash from the non-tribal citizens was due to ignorance.

“When people don’t know what the laws are and the rights are the rights are, they have to make judgements on what the media says or politicians say.”

Native Americans have been treated as a people of the past.

“There’s a gross lack of information about us as a contemporary people and people who still live in this country. This is the same message we ask the young people to listen to. It ran through the lives of your parents and grandparents. And it will run through your lives as well.

“That ignorance, that lack of knowledge – many members of Congress think that the treaties signed and approved so many ears ago are not relevant anymore or shouldn’t be. It’s a challenge you’ll have and your children will have. We have to keep on keeping on with the job of education.”

Zell spoke to a proposed bill to decommercialize steelhead: “In this case, the members of the different panels represented the state, the tribes, the commercial fishermen, sports fishermen and those who were engaged in management at state, tribal and federal level. They all spoke to senate committee before the hearing and wanted to sit together as one panel. Each witness stood up, which was unusual and gave testimony standing up. ’10 years after the Indian wars and now 10 years since Boldt decision, we’ve decided we work fine as is. We are co-managing the resource, we are working together. We have developed and flourished relationships that we plan to continue.'”

In the aftermath, it was a remarkable development in a very short time. And that good work goes on.

“The work of the Boldt Decision goes on and that’s what the young people, that’s the foundation it has stood on and you can do it again.”

This is all an education of who we are. It started a long time ago. It started before me and before my parents. It started before all of our moms and dads and grandpas and grandmas. They knew what they had to do. They lived here, they never moved. This is their home, and that’s our food that comes up that river every day.

You take our food away and our water, and we might have to do something like taking over the Game Department building in Olympia, Washington. The night before, the state Game Department came down and took all of our gear from the Nisqually River. They took all of our boats, confiscating everything. Hauled them off into their little backyard in Olympia, the Game Department building.

We have to feed our family like everybody else. Who do we go to? Do I go to Congress? Do I go to the president? Do I go to the governor?

Nobody listens to you because you’re an Indian. You have a treaty with the United States and they don’t know what the hell that means. They’ve never implemented it. Never taught it in their schools, so nobody knows what the treaty is about, until we come along and start talking about our five treaty areas.

That took a long time to make that happen, and we’re still doing it today. We’re having this great celebration. We’re talking to our young people, telling them we’ve got to remember what we’re all about.

We’ll die for that clean water. We’ll die for that salmon. We’ll die for everything that flies. We’ll die for that mountain. We’ll die for those trees. That’s what every Indian in this country talks about.